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2013 DIGILAW 3048 (ALL)

Israr Ahmad v. District Director of Consolidation

2013-12-13

SIBGHAT ULLAH KHAN

body2013
JUDGMENT Sibghat Ullah Khan, J. 1. Heard Sri M.A. Khan, learned senior Counsel assisted by Sri Mohd. Aslam Khan, learned Counsel for petitioner and Sri Jai Pal Singh, learned Counsel for opposite party No. 4. Initially Mohd. Yunus and his sister Asgari Khatoon were joint tenure holders of the agricultural land in dispute admeasuring about 4.4 hectares to the extent of half share each. Petitioner claims that Smt. Asgari Khatoon executed unregistered Will dated 10.12.1996 in respect of her share in the agricultural land in favour of the petitioner and Sri Mohd. Yunus also executed Will on 7.6.2012 in favour of the petitioner in respect of his share. However, Mohd. Yunus had earlier executed registered Will on 18.12.2008 in favour of Darul Uloom Devband, respondent No. 5, a registered society running a school. Before C.O. petitioner as well as Mohd. Yunus claimed the property of Smt. Asgari Khatoon. The C.O. on 23.6.2012 passed order in favour of petitioner in respect of land of Asgari Khatoon. Against the said order respondent No. 4, Mohd. Farooq filed appeal as well as an application before C.O. for recall of the order. The C.O. through order dated 18.4.2013 recalled its order dated 23.6.2012. 2. The case of respondent No. 5 was that Mohd. Yunus had executed the registered Will of his entire property including the property of his sister which he got in inheritance on 18.12.2008. Mohd. Yunus was after-wards murdered. 3. After recall of the order by C.O. obviously appeal became infructuous hence that was got dismissed by respondent No. 4, which application was allowed on 11.6.2013 by S.O.C. The said order was perfectly valid. Against ex-parte order both remedies, restoration and appeal, are available and can be pursued simultaneously. If restoration is allowed, appeal becomes infructuous. Against the order dated 18.4.2013 petitioner filed appeal. It is mentioned in para-13 that S.O.C. on 9.5.2013 passed status quo order on the order-sheet of the appeal. In spite of it, transfer application was filed seeking transfer of appeal to the Court of S.O.C.-II Barabanki. It was nothing but choosing the Court by a litigant. The application was filed before S.O.C. Barabanki himself. Appeal was dismissed by S.O.C. holding that order dated 23.6.2012 was obtained by fraud. Appeal was dismissed on 30.7.2013. Against the said order, petitioner had filed revision. In the revision also petitioner filed transfer application. It was nothing but choosing the Court by a litigant. The application was filed before S.O.C. Barabanki himself. Appeal was dismissed by S.O.C. holding that order dated 23.6.2012 was obtained by fraud. Appeal was dismissed on 30.7.2013. Against the said order, petitioner had filed revision. In the revision also petitioner filed transfer application. Application was filed before Consolidation Commissioner also on 3.10.2013. Manhandling had also taken place in some Court regarding which Commissioner asked the D.M. to make inquiry. Transfer application was rejected on 29.11.2013 by District D.D.C. Barabanki, the order was passed in Case No. 1 (12-13). The said order has been challenged through this writ petition. 4. In para-4 of the writ petition, it has been stated that Mohd. Yunus executed a registered Will on 18.12.2008 in favour of Darul Uloom (opposite party No. 5) but later on after revoking the said Will he had executed another Will on 7.6.2012 in favour of the petitioner. If the Will dated 7.6.2012 is unregistered then it is meaningless as after amendment of August, 2004 in section 169 of U.P.Z.A. & L.R. Act, Will of agricultural property can be executed only through registered document. 5. This is more than evident that petitioner is not allowing the case to be decided and is trying to pressurise the courts. 6. The adjectives used for the contesting respondents by the petitioner in the writ petition may more appropriately be applied upon the petitioner. 7. Writ Petition is dismissed. All the proceedings pertaining to dispute in question shall be decided very expeditiously. Absolutely no unnecessary adjournment shall be granted to any of the parties. D.D.C., S.O.C. and C.O. must realise that while discharging judicial function they are strong enough to keep the parties disciplined. No party can be permitted to browbeat the courts. No case can be transferred on mere apprehension that a party would not get justice or on wild allegations that some one is trying to pressurise the Courts.